Security Clearance Appeals Process
When a security clearance application is denied, the adjudicator issues a Letter of Intent to deny the clearance.
The LOI is a preliminary, tentative decision and will contain a “Statement of Reasons” detailing the issues that are the basis of the decision. The LOI contains instructions on how to request a copy of the investigative le on which the decision to issue the LOI was based.
Industrial applicants (federal contractor personnel) can submit a written rebuttal to the SOR and request a hearing. If the applicant does not rebut the SOR, the Department of Defense Central Adjudication Facility will deny the clearance.
If the applicant rebuts the SOR without requesting a hearing, DoDCAF sends the applicant a File of Relevant Material (FORM) that will be presented to an Administrative Judge (AJ) for a clearance decision based on the written record. The applicant can submit a written response to the FORM, which will also be presented to the AJ.
If the applicant requests a hearing, the applicant (with or without an attorney or personal representative) may present witnesses and other evidence at the hearing. The applicant may also cross-examine witnesses and challenge evidence presented by the DoDCAF Department Counsel (an attorney representing DoD).
The AJ makes a written decision and a copy is sent to the applicant. DoDCAF is then directed to grant or deny the clearance in accordance with the AJ’s decision. If the clearance is denied, the applicant is notified in writing and advised of their right to appeal the decision. It is possible that an adjudicator could grant the clearance after reviewing the applicant’s response to the SOR, thus obviating the need to present the case to an AJ.
DoD civilian employees and military personnel can submit a written rebuttal to the SOR, but they are not entitled to a hearing. If the applicant does not rebut the SOR, DoDCAF will deny the clearance. If they submit a written rebuttal to the SOR, the adjudicator will decide to grant or deny the clearance in light of information submitted in the rebuttal. If a decision is made to deny a clearance, the applicant is notified in writing and advised of their right to appeal the decision.
Any applicant may appeal a clearance denial or revocation to the federal agency’s three-member Personnel Security Appeals Board (PSAB). PSAB decisions are made by a majority vote.
Industrial applicants are limited to submitting a written appeal, but the PSAB will not consider any new evidence. The appeal must be based on procedural errors by the AJ.
In industrial cases, the DoD Department Counsel can appeal the favorable decision of an AJ. The PSAB issues a written decision addressing the material issues raised on appeal and a copy is sent to both parties. The PSAB can affirm, reverse, or remand a case to the original AJ with instructions for further review. If the original decision is reversed or affirmed, the decision of the PSAB is final.
DoD civilian employees and military personnel have the choice of submitting a written appeal with supporting documents directly to their PSAB or requesting a personal appearance before an AJ. In either case, new evidence can be submitted. Those who choose to appear before an AJ are permitted to explain their case (with or without an attorney or personal representative), submit supporting documents, and present witnesses, but it is not a hearing and there is usually no opposing counsel. The AJ evaluates all the information and
makes a written clearance recommendation to the applicant’s PSAB. The PSAB is not required to follow the recommendation of the AJ. The PSAB notifies the applicant of their final decision and includes reasons for their decision.
Applicants who are denied a clearance with or without an appeal are barred from applying for a security clearance for a period of one year.
The Law
As for the contents of the appeal, an attorney can be of enormous help.
Generally, the law is very clear. When we are handling security clearance cases we want to emphasis that a clearance does not equate with passing judgment upon an individual’s character. Department of the Navy v. Engen, 484 U.S. 518 (1988). It is only an attempt to predict possible future behavior and to assess whether, under “compulsion of circumstances,” the individual might compromise sensitive information. Id. The clearance decision must be a fair and impartial common sense determination based upon all relevant and material information. Department of Defense (DoD) Directive 5220.2-R.
In the decision-making process, the burden of producing evidence initially falls on the government to establish a case, by substantial evidence, which demonstrates that it is not clearly consistent with the national interest to grant or continue an applicant’s access to classified information. ISCR OSD Case No. 08-08433.h1.
Substantial evidence is more than a scintilla, but less than preponderance. Id. It requires such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Defense (DoD) Directive 5220.2-R, para. E.3.1.32.1. The government has the burden of establishing controverted facts alleged in the statement of reasons. Id. If the government meets its burden, the burden of persuasion falls on the applicant to refute, explain, or mitigate the security concerns. ISCR OSD Case No. 96-0525.
Department of Defense (DoD) Directive 5220.2-R., Appendix 8 provides guidance for the adjudicative process. The directive states that:
“The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk.
Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudication process is the careful weighing of a number of variables known as the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.
In evaluating the relevance of an individual’s conduct, the adjudicator should consider the following factors:
- The nature, extent, and seriousness of the conduct;
- The circumstances surrounding the conduct, to include knowledgeable participation;
- The frequency and recency of the conduct;
- The individual’s age and maturity at the time of the conduct;
- The voluntariness of participation;
- The presence or absence of rehabilitation and other pertinent behavioral changes;
- The motivation for the conduct;
- The potential for pressure, coercion, exploitation, or duress; and,
- The likelihood of continuation or recurrence.”
Successfully mitigating a security clearance case requires careful attention and evidence regarding the above factors. Our firm has the experience to help you with your security clearance appeal.
